PJSC Natl. Bank Trust v Pirogova

2024 NY Slip Op 33283(U)

September 17, 2024

Supreme Court, New York County

Docket Number: Index No. 656519/2020

Judge: Andrew Borrok

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 294 

INDEX NO. 656519/2020 

RECEIVED NYSCEF: 09/17/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 

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PJSC NATIONAL BANK TRUST 

Plaintiff, 

- V -

NATALIA PIROGOVA, 

Defendant. 

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HON. ANDREW BORROK: 

INDEX NO. 656519/2020 

MOTION DATE 06/07/2024 

MOTION SEQ. NO. 011 

DECISION+ ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 011) 262,263,264, 265, 

266,267,268,269,270,271,272,273,274,277,280,287,288,291,292 

were read on this motion to/for CONTEMPT 

Upon the foregoing documents, PJSC National Bank Trust (the Judgment Creditor)'s 

unopposed motion (Mtn. Seq. No. 011) to hold Willy Cancel, Jr., in civil contempt is granted 

solely to the extent that Mr. Cancel shall appear at a deposition and provide the requested 

documents within the next 45 days or he will be in civil contempt and subject to the penalties set 

forth in the Judgment Creditor's motion. 

The facts of this case, including Ms. Pirogova' s extensive efforts to avoid paying the judgment 

entered against her by concealing her whereabouts, were discussed in detail in a prior Decision 

and Order of this Court dated July 25, 2024 (the Prior Decision, NYSCEF Doc. No. 281). 

Familiarity is presumed. 

Briefly, and as discussed in the Prior Decision, when the Judgment Creditor sent an investigator 

to 271 Garderville Road, New Hampton, New York 10958, an address believed to potentially be 

656519/2020 PJSC NATIONAL BANK TRUST vs. PIROGOVA, NATALIA 

Motion No. 011 

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RECEIVED NYSCEF: 09/17/2024 

that of Ms. Pirogova, they encountered Mr. Cancel who indicated that he was a resident of that 

address (NYSCEF Doc. No. 272). 

On April 24, 2024, the Judgment Creditor issued a post-judgment subpoena to Mr. Cancel, 

requiring him to sit for a deposition and produce documents (the Cancel Subpoena; NYSCEF 

Doc. No. 264). Service was effected on April 25, 2025 (NYSCEF Doc. No. 265). 

Subsequently, on May 6, 2024, Mr. Cancel appeared for a deposition, without the requested 

documents, but refused to testify for more than an hour (NYSCEF Doc. No. 263 ,i 25). To 

accommodate Mr. Cancel, the Judgment Creditor agreed to postpone his deposition until May 

10, 2024. When Mr. Cancel appeared at this rescheduled deposition, he again refused to testify -

this time indicating that he needed a lawyer (id. ,i 26). As an accommodation, the Judgment 

Creditor once again agreed to postpone Mr. Cancel' s deposition. This time the deposition was 

rescheduled until May 14, 2024 (id.). One day before this third rescheduled deposition, Mr. 

Cancel informed the Judgment Creditor he would not appear (id. ,i 27). 

The Judgment Creditor again agreed to offer Mr. Cancel additional accommodation, postponing 

his deposition until May 17, 2024 (so that Mr. Cancel could find a lawyer) informing Mr. Cancel 

that the Judgment Creditor would seek an order compelling his appearance and for sanctions if 

he did not attend (id. ,i 28). Mr. Cancel never replied, and to date has not appeared for a 

deposition or produced the documents requested in the Cancel Subpoena (id. ,i,i 29-31 ). 

656519/2020 PJSC NATIONAL BANK TRUST vs. PIROGOVA, NATALIA 

Motion No. 011 

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The Judgment Creditor now moves for an order pursuant to CPLR 2308( a) and 5251 to (i) hold 

Mr. Cancel in civil contempt, (ii) allow Mr. Cancel to purge his contempt by complying with the 

Cancel Subpoena within 10 days, (iii) punish Mr. Cancel by ordering him to pay the Judgment 

Creditor's attorneys' fees and costs incurred in connection with twice attempting to take his 

deposition and in bringing this motion, a total of $19,200, and (iv) ordering Mr. Cancel to pay 

the Judgment Creditor the statutory penalty of $150 (NYSCEF Doc. No 277). Mr. Cancel has 

not submitted any opposition to this motion (NYSCEF Doc. No. 291). 

To make a finding of civil contempt, the Court must determine that (i) a lawful order of the court 

clearly expressing an unequivocal mandate was in effect, (ii) it appears with reasonably certainty 

that the order has been disobeyed, (iii) the party to be held in contempt had knowledge of the 

court's order, and (iv) the right of a party to the litigation is prejudiced (El-Dehdan v El-Dehdan, 

26 NY3d 19, 29 [2015]). Civil contempt must be demonstrated by clear and convincing 

evidence (Classe v Silverberg, 168 AD3d 603, 604 [1st Dept 2019]). It is not necessary that the 

disobedience be deliberate or willful, rather "the mere act of disobedience, regardless of its 

motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, 

impedes or prejudices the rights of a party" (Yalkowsky v Yalkowsky, 93 AD2d 834, 835 [2d Dept 

1983]). 

Pursuant to CPLR 5223 a judgment creditor "may compel disclosure of all matter relevant to the 

satisfaction of the judgment, by serving upon any person a subpoena, which shall specify all of 

the parties to the action, the date of the judgment, the court in which it was entered, the amount 

of the judgment and the amount then due thereon, and shall state that false swearing or failure to 

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Motion No. 011 

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comply with the subpoena is punishable as a contempt of court" (CPLR 5223). Pursuant to 

CPLR 5224, such subpoenas may include (i) a subpoena requiring attendance at a deposition and 

(ii) a subpoena duces tecum requiring the production of books and papers for examination 

(CPLR 5224[a][l]-[2]). 

CPLR 2308(a) provides in relevant part: 

( a) Judicial. Failure to comply with a subpoena issued by a judge, clerk or officer of the 

court shall be punishable as a contempt of court. If the witness is a party the court may 

also strike his or her pleadings. A subpoenaed person shall also be liable to the person on 

whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty 

dollars and damages sustained by reason of the failure to comply. A court may issue a 

warrant directing a sheriff to bring the witness into court. If a person so subpoenaed 

attends or is brought into court, but refuses without reasonable cause to be examined, or 

to answer a legal and pertinent question, or to produce a book, paper or other thing which 

he or she was directed to produce by the subpoena, or to subscribe his or her deposition 

after it has been correctly reduced to writing, the court may forthwith issue a warrant 

directed to the sheriff of the county where the person is, committing him or her to jail, 

there to remain until he or she submits to do the act which he or she was so required to do 

or is discharged according to law. Such a warrant of commitment shall specify 

particularly the cause of the commitment and, if the witness is committed for refusing to 

answer a question, the question shall be inserted in the warrant. 

(CPLR 2308[a]). 

The Cancel Subpeona was issued by Stephen Forte and Alexander Mirkin, officers of the Court. 

As such it is judicial subpoena (CadleRock Joint Venture, L.P. v Patterson, 199 AD3d 557, 558 

[1st Dept 2021] "CPLR 2308 (a) embraces subpoenas issued by an officer of the court (such as 

an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was 

specifically returnable in court"). Unquestionably at this point, Mr. Cancel has failed to comply 

with the Cancel Subpoena and appears to be engaged in gamesmanship to avoid producing the 

documents that he must produce and to otherwise appear at a deposition. This appears to be in 

656519/2020 PJSC NATIONAL BANK TRUST vs. PIROGOVA, NATALIA 

Motion No. 011 

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attempt to frustrate or impede the legitimate judicial proceeding ( Clinton Corner HD.F. C. v 

Lavergne, 279 AD2d 339, 341 [1st Dept 2001]). 

Merely as an accommodation and to avoid any doubt, he must comply with the Cancel Subpeona 

by producing the requested documents and appearing at a deposition within the next 45 days or 

he shall be held in contempt of Court ( CadleRock Joint Venture, L.P. v Patterson, 199 AD3d 

557, 558 [1st Dept 2021]; CPLR 2308[a]). 

The decision to award sanctions is left to the sound discretion of the Court. At this time, the 

Court declines to award sanctions. If Mr. Cancel fails to comply with the clear and unequivocal 

order of this Court, he shall be subject to the relief sought by the Judgment Creditor. 

Accordingly, it is hereby 

ORDERED that the Judgment Creditor's motion (Mtn. Seq. No. 011) to hold Mr. Cancel in civil 

contempt is granted solely to the extent set forth above. 

9/17/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

656519/2020 PJSC NATIONAL BANK TRUST vs. PIROGOVA, NATALIA 

Motion No. 011 

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ANDREW BORROK, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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